James Damore has an 'above decent' chance of winning his legal case against Google

An expert in California labor law tells Business
Insider that Damore has a better chance of winning his case
than people may think.

That's because Damore's case is NOT about free speech,
discrimination, or his rights as an "at-will" worker.

Damore filed under a section of the law that deals with
protecting statements made by workers' rights activists who
have questions about wages and conditions.

Google may have difficulty establishing that he broke
the company's code of conduct because he used message boards
the company provided to allow employees to discuss these
issues, and because his manifesto repeatedly states he favors
diversity and intended to "increase women's representation in
tech."

Rather, the provision governs what workers are allowed to talk
about in the workplace about pay, conditions, promotions, and
other practices. The law was crafted to protect the right of
union organisers to discuss pay rates with their colleagues, and
more recently to protect anyone asking questions at work about
who gets paid what, and why.

On that basis, he has a fighting chance, according to Valerie
Sharpe, a labor lawyer based in the San Francisco area. She told
Business Insider that Damore's chances of success were "a little
bit above decent." Human-resources lawyers at other tech
companies in the Bay Area are following the case closely for that
reason, she says.

"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have
the right to refrain from any or all of such activities except to
the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in section 8(a)(3)."

"The crux of his claim is whether Google penalized him for
raising concerns about working conditions (i.e., unfair treatment
of white men?)" Sharpe said. "Whether the manifesto really
constitutes a 'concern about working conditions' and whether he
was acting for the good of others will be the dispositive issues.
I am not aware of any cases that are exactly on point, but there
are certainly cases that litigate this issue and cases where
employees are returned to work."

Damore doesn't have to prove that the allegations made in his
manifesto are true

"Damore's possible claims really have nothing to do with whether
white males are discriminated against in wages and promotion,"
Sharpe said. "It is about whether he was fired because he
complained that Google's diversity efforts were unfair to men. He
doesn't have to prove the allegation, just that he made the claim
for the purpose of advancing working conditions of himself and
others."

Google's other problem in defending this case would be to
establish that Damore broke company policy by publishing the
manifesto. Its employee
code of conduct prohibits employees from discriminating
against one another based on sex or race.

"Googlers are expected to do their utmost to create a workplace
culture that is free of harassment, intimidation, bias, and
unlawful discrimination," it says.

The company presumably might argue that Damore's manifesto was an
example of using a company message board to post a discriminatory
statement that violated the policy. The manifesto argued that
"biological causes ... may explain why we don't see equal
representation of women in tech and leadership." No doubt many
women at Google complained internally that it was being
circulated on Google's employee message boards.

But the manifesto was specifically worded. It repeatedly states
that Damore favors diversity, but merely has a different view on
how to achieve it, and it questions only whether Google's current
efforts to encourage women and minorities are fair. The intent of
the manifesto was to "suggest ways to address" biological
differences between men and women "to increase women's
representation in tech without resorting to discrimination," it
says.

Sharpe said: "I have conducted probably 100 workplace
investigations to assess whether employee complaints about
harassment and discrimination violate employer codes of conduct,
and I am not sure I would find this to be a violation of a code
that merely prohibited 'unlawful' harassment and discrimination."

Lastly, Google may have trouble establishing that using its
message board was a violation of policy, given that the company
provides message boards precisely to allow workers to discuss
workplace issues.

"Because startups like Google have lots of message boards and
employer-sponsored forums for employees to discuss work issues
(i.e., employee resource groups), Google will have challenges
establishing a policy violation," Sharpe said.

Of course, the irony here is that if Damore wins, it could be
regarded as a big victory for conservatives who work in tech,
though the win would strengthen the kind of workers' rights that
are traditionally the focus of the left.